On Tuesday, on Yale Journal on Regulation's Notice & Comment blog, Andy Grewal posted an interesting critique of my Lawfare piece interpreting the Office of Legal Counsel and Comptroller General opinions on emoluments. On Wednesday, I replied—you can read my Notice & Comment post here.
My intention in the post is not really to dispute Grewal's interpretation of either the Foreign or Domestic Emoluments Clause but rather to emphasize the significance of the analytical distinction "between what the law is [and] how the executive branch has traditionally interpreted the constitutional limitations on undue foreign and domestic influence." I write:
Whereas the Justice Department and all of the plaintiffs have marshaled a host of arguments about the meaning of the Emoluments Clauses based on text, the Framers’ intent, historical application, and purpose, I have restricted my own analysis to OLC and Comptroller opinions. Bounding the inquiry in this way amounts to a kind of normative assertion about the importance of the executive branch’s historical posture on issues of risk and positions of public trust. The objective of such an inquiry is not merely, or even primarily, to achieve elucidation of what the Constitution “actually means.” Rather, the purpose is to uncover critical insights about which side of the line the executive branch has typically come down on when confronting emoluments-related issues of personal versus public interest.
What are some of those insights? Pointing to the OLC and Comptroller's repeated invocation of the "spirit" of the emoluments provisions, I make this observation:
[H]istorically, both offices have been less interested in highly technical, up-to-the-line interpretations of what profits officers may collect and far more interested in ensuring that officers in positions of public trust be precluded from accepting any payments not in accord with the overarching purpose of the Foreign and Domestic Emoluments Clauses. By extension, it is interesting and significant that Trump has chosen to pursue a different, far narrower interpretation—one that favors himself.
And here is my conclusion:
Presently the American public is engaged in a vociferous debate over what it means to be “presidential”—but this conversation has so far been largely confined to assessing the appropriateness of the President’s startling tweets. I suggest that the public would be well served by a more wide-ranging discussion of what it really means to uphold the dignity of the country’s most powerful office. The president’s insistence on protecting his own personal financial interests using a highly exacting conception of constitutional provisions designed to protect the country may well serve as an example of “unpresidential” behavior of the highest import. What we are witnessing is legal reasoning befitting an ordinary private litigant, whose chief interest is protecting himself and his wealth, not conduct and a litigation strategy befitting the President of the United States.
And my view is that the OLC and Comptroller opinions on the subject support that assessment.